L.M. v. Town of Middleborough, et al., U.S.D.C. D. Mass.  Memorandum and Order denying plaintiff’s motion for injunction issued June 16, 2023.  Notice of interlocutory appeal filed June 23, 2023.

Nichols Middle School in Middleborough, Massachusetts celebrates LGBTQ+ interests with messaging, events, and sponsorship of on-site student activities such as a LGBTQ+ club for LGBTQ+ students and allies.

All Nichols Middle School students must abide by a dress code that precludes apparel reflecting “hate” speech or imagery concerning multiple enumerated classes “or any other classification.”  In addition, the code states that whatever else the school determines to be unacceptable will not be allowed.  

One day in early spring of this year, plaintiff L.M. arrived at school wearing a t-shirt reflecting a traditional view of ‘gender.’  School officials, citing unidentified reports of student “upset,” demanded that L.M. remove the t-shirt.  

The school justified its action by stating that L.M.’s t-shirt “targeted” students of a protected class.

In subsequent months, counsel for L.M. requested confirmation that L.M. could wear the t-shirt to school again.  Counsel for the school responded that the t-shirt would be prohibited.

In May, 2023, L.M. appeared in school wearing a t-shirt bearing a “CENSORED” banner which was thought to cover the message of L.M.’s initial t-shirt.  School officials demanded that L.M. remove the t-shirt.  The school day proceeded without incident. 

Two other students wearing the t-shirt were treated similarly.  No student was formally disciplined because of the t-shirt.

This past May L.M. sued the school and its officials, demanding injunctive relief pursuant to 42 U.S.C. Section 1983 for violations of the First and Fourteenth Amendments of the U.S. Constitution, citing viewpoint discrimination and pointing to the overbreadth and vagueness of the school dress code.

The U.S. District Court in Massachusetts denied injunctive relief on June 16, 2023, finding that in the absence of a showing that plaintiff’s would likely succeed on the merits, such relief was not warranted.  Plaintiff’s Notice of Interlocutory Appeal was filed on June 23, 2023. 

Noting that the likelihood of success on the merits is the controlling factor in review for injunctive relief, the court opened its analysis with a recital from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), a VietNam War era Supreme Court decision which acknowledged students’ First Amendment rights, with some limitations, which constitutional interests prohibit schools from forbidding expressions of opinion merely because such views may cause discomfort.  Order at 9, citing Tinker, supra, at 509.   

In reviewing plaintiff’s request, the court noted in matters of restrictions on student speech, the court should defer to school administrators’ positions, if rational.  Order at 10.

The Supreme Court’s acknowledgement of students’ constitutional rights is cabined by the Court’s recognition of school officials’ authority to limit speech which disrupts school, causes substantial disturbance, or which invades the rights of others, as such speech does not enjoy constitutional protections.  Order at 9, citing Tinker, supra, at 513.

Nichols Middle School has not disputed that the t-shirt may be constitutionally protected but justifies its action based on undefined and unenumerated student and staff complaints and because the school concluded that the t-shirt invaded the rights of a protected class.  

The federal court concluded that the school’s acts were within its discretion and were undertaken to protect against the invasion of rights of other students to a “safe educational environment.”  The school acted within its discretion, the court observed, in concluding that the protected class of students have a right to attend school without messaging that “attacks” their identities. Order at 11, citing Tinker, supra, at 508.  

The judge further opined that specific student bullying need not be found, and that a schools’ efforts to ensure safety have been recognized by other courts, citing cases concerning flag displays and obscenity. 

The balance of equities does not favor L.M., the judge observed, because L.M. can wear the t-shirt elsewhere.  By comparison, in the view of the school officials, wearing the t-shirt at school would harm the protected class of students, who would be unable to attend school without harassment, and would cause the school to fail in its obligation to the state to prevent discrimination, bullying and harassment based on gender identify or the school’s obligation to provide a “safe environment” without regard to gender identity.

Because the court had concluded that L.M. would not likely succeed on the merits, the court found that L.M.’s assertion that enjoining unconstitutional acts always serves the public interest falls flat.

Subsequent to the June 16th denial of injunctive relief, plaintiff has filed an interlocutory appeal to the U.S. Court of Appeals for the  First Circuit.  At this writing, no information concerning the interlocutory appeal appears in the public records of the First Circuit. 

Justlawful notes:  It appears that here the federal judge not only deferred to the opinions of school administrators but also adopted those views, which were premised on asserted but unrevealed complaints and a hypothetical view of possible emotional “unsafety” in the future.  In the main, the court’s ruling seems to be grounded in the school administrators’ views that protected class status takes precedence over rights guaranteed by the First and Fourteenth Amendments.  Justlawful wonders how this view, if accurately characterized here, accounts for the “equal” language in the Fourteenth Amendment.  

Justlawful notes as well that Tinker remarked upon, but did not recognize a “right” to be free from messaging that may “attack” a student’s identity, as intimated by the court in L.M.’s case.  Tinker was and is quite clear that speech restrictions must consider material and substantial harm:  

The District Court concluded that the action of the school authorities was reasonable because it was based upon their fear of a disturbance from the wearing of the armbands. But, in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U. S. 1 (1949); and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

Tinker v. Des Moines Independent Community School District, 353 U.S. 503, 508 (1969).

If the school’s view, as adopted by the federal district court, is correct, then identity controls the exercise of all other rights, a result that is not reflected in Tinker.  Tinker recognized that speech that materially intrudes on the rights of others is not constitutionally protected speech.  Tinker, supra, at 513. “Protected class” status is not part of the Tinker analysis.  

There is a position that may be taken that Tinker’s concern with substantial disruption of the “rights of others” meant “all others.”  The emergence of status dominance in consideration of speech interests would seem antithetical to any court’s interest in attending to equality under the law.  

Justlawful recognizes that interlocutory appellate review is only marginally more likely to be afforded than any other interlocutory review, even in the presence of a statutory premise for seeking that review. Calvary Chapel of Bangor v. Mills, 984 F.3d 21 (1st Cir. 2020), cert. denied, 142 S. Ct. 71 (2021).  Regarding immediate review of denial of injunctive relief, courts are nothing if not parsimonious, as they are bound by statute and tradition to be.  

Justlawful is eager to learn of the First Circuit’s acceptance — or not — of this case for immediate review.  Even in the absence of rapid First Circuit consideration, it will be interesting to see how further litigation unfolds, particularly as this case may be seen as laying a foundation for tinkering with Tinker.  

L.M. v. Middleborough Order June 16 2023 (D. Mass.)

Notice of Appeal June 23, 2023